Georgiana Epure joins JiC for this guest post on the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud and the prospects of adjudicating gender-based persecution at the International Criminal Court (ICC). Georgiana is a fellow at the Open Society Justice Initiative. She holds an MPhil in Politics and International Relations from the University of Cambridge and an MA in Interdisciplinary Social Research from the University of Leeds. The views and opinions expressed in this article are those of the author alone and do not represent the position of any organisation.

Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud during an appearance before the ICC in July 2019. (Photo: ICC)
Yesterday marked the opening of the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, the second Malian jihadist to appear before the International Criminal Court (ICC). After the ICC Prosecutor’s first investigation into the Mali situation pioneered the first conviction of destruction of religious and historical buildings as a war crime, the Court is now writing the jurisprudence on gender-based persecution as a crime against humanity. Whilst persecution on grounds of ethnicity and religion has been subject to extensive prosecutorial attention, gender-based persecution has never been adjudicated before.
Al Hassan’s alleged crimes in Mali
One reason why the trial of Al Hassan is significant is because it concerns crimes that the Al Mahdi case left unaddressed. Al Hassan is facing charges of crimes against humanity and war crimes, including torture, persecution on religious and gender grounds, rape, sexual slavery, forced marriages, sentencing without due process, and attacking religious buildings.
The alleged crimes took place between April 2012 – January 2013. During this period, two Islamist extremist groups, Ansar Dine and Al Qaeda in the Islamic Maghreb (AQIM), occupied Timbuktu and the surrounding region in the north of Mali. Al Hassan was a de facto head of the Islamic police – one of the institutions through which the armed groups sought to impose their ideology and vision of religion. He was in charge of enforcing the new rules of a harsh version of Sharia law, by taking part in police patrols, arresting and detaining civilians, implementing sanctions imposed by the Islamic court, and participating in the policy of forced marriages. Considering that, so far, the ICC has handed down only one conviction of sexual and gender-based violence, the expectations regarding Al Hassan’s trial are high.
Gender-based persecution before the ICC
Apart from the Al Hassan case and the initial charge of gender-based persecution in the 2010 case of Callixte Mbarushimana, which was ultimately left out at the confirmation of charges stage, this crime was included in only one other investigation. The Prosecutor’s 2017 request for the authorisation of an investigation in Afghanistan – authorised by the Appeals Chamber earlier this year – alleges that, pursuant to the ideology of the Taliban, women and girls were targeted “to prevent them from studying,teaching, working or participating in public affairs, through intimidation, death threats, abductions and killings”. Due to the climate of fear, women and girls stopped working or going to school (para.116).
According to the 2018 Preliminary Examinations Report (para.225), the Office of the Prosecutor (OTP) is also considering evidence of gender-based persecution committed by Boko Haram and national security forces against female and male victims in Nigeria. The OTP found reasons to believe that the targeting of girls for attending public schools, the use of girls as suicide bombers, the targeting of males to fight for Boko Haram, and the selective execution of men of fighting age constitute acts of persecution on gender grounds.
What’s in a name?
The Rome Statute was the first international tribunal statute to include persecution on the grounds of gender as a crime against humanity. It was also the first statute to define the term ‘gender’. According to Article 7(3), gender refers to “the two sexes, male and female, within the context of society”. The definition has been criticised for conflating notions of gender and sex and for risking reinforcing binary notions of gender. As one commentator put it, the definition “awkwardly sits somewhere between a sociological and biological conception of gender […] but this constructive ambiguity also leaves room for creative lawyering”. Ultimately, it leaves much of the interpretation to the judges. Continue reading










